[Federal Register Volume 60, Number 215 (Tuesday, November 7, 1995)]
[Rules and Regulations]
[Pages 56206-56213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27501]
[[Page 56205]]
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Part III
Department of Agriculture
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
7 CFR Part 24
Revision of Rules of Procedure, Agriculture Board of Contract Appeals;
Final Rule
Federal Register / Vol. 60, No. 215 / Tuesday, November 7, 1995 /
Rules and Regulations
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[[Page 56206]]
DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Part 24
Revision of Rules of Procedure, Agriculture Board of Contract
Appeals
AGENCY: Office of the Secretary, USDA.
ACTION: Final rule.
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SUMMARY: The Agriculture Board of Contract Appeals (``AGBCA'') hereby
revises its Rules of Procedure, 7 CFR Part 24, by making minor
modifications to implement the requirements of the Federal Acquisition
Streamlining Act of 1994 regarding amounts in controversy for use of
expedited and accelerated procedures; to describe the Board's
jurisdiction in conformance with current Departmental regulations; to
eliminate the Rules of Procedure for ``nonstatutory'' appeals contained
in 7 CFR 24.21 Appendix B (used primarily for pre-Contract Disputes Act
(``CDA'') appeals); and to make minor technical corrections to the
rules of procedure to streamline conduct of appeals and conform to
current AGBCA practice. The intended effect of these changes is to
provide one streamlined set of rules of procedure applicable to all
appeals within the AGBCA's jurisdiction.
DATES: This rule is effective November 7, 1995.
FOR FURTHER INFORMATION CONTACT:
M.C. Shager, Chief Counsel, Board of Contract Appeals, U.S. Department
of Agriculture, 2912 South Building, Washington, D.C. 20250. Telephone
(202) 720-7023.
SUPPLEMENTARY INFORMATION: These changes have been reviewed under
United States Department of Agriculture (``USDA'') procedures
established by Executive Order 12866 and Departmental Regulation 1512-
1. These changes constitute a review as to the need, currency, clarity,
and effectiveness of these regulations under those procedures.
These changes have been determined to be ``not significant'' for
the purposes of Executive Order 12866, Regulatory Planning and Review,
and therefore have not been reviewed by the Office of Management and
Budget (``OMB'').
These changes do not contain information collection requirements
that require approval by OMB under the Paperwork Reduction Act of 1980
(44 U.S.C. 501 et seq.).
It has been determined under section 6(a) of Executive Order 12612,
Federalism, that these changes do not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment. The
policies and procedures contained in these changes will not have a
substantial direct effect on states or their political subdivisions, or
on the distribution of power and responsibilities among the various
levels of government.
Under the Regulatory Flexibility Act (5 U.S.C. 605), these changes
will not have a significant impact on a substantial number of small
entities. These changes do not increase the paperwork burden on
contractors filing appeals with the AGBCA because these changes only
conform the Board's jurisdiction to existing USDA regulations and
change the thresholds for accelerated and expedited appeals consistent
with the Federal Acquisition Streamlining Act of 1994 (Pub. L. No. 103-
355) (``FASA''). Therefore, these changes are determined to be exempt
from the provisions of the Regulatory Flexibility Act and no Regulatory
Flexibility Analysis was prepared.
The Office of the General Counsel has determined that these changes
meet the applicable standards provided in subsections (2)(a) and
2(b)(2) of Executive Order 12778, Civil Justice Reform.
These changes are not expected to have any significant impact on
the quality of the human environment, health, and safety. Therefore,
neither an Environmental Assessment nor an Environmental Impact
Statement is needed.
These changes contain modifications to implement the requirements
of the FASA regarding amounts in controversy for use of expedited and
accelerated procedures; to describe the Board's jurisdiction in
conformance with current Departmental regulations; to eliminate the
Rules of Procedure for ``nonstatutory'' appeals contained in 7 CFR
24.21 Appendix B; and to make minor technical corrections to the rules
of procedure to streamline the conduct of appeals and conform to
current AGBCA practice. The intended effect of these changes is to
provide one streamlined set of rules of procedure applicable to all
appeals within the AGBCA's jurisdiction.
These changes relate to internal agency management and rules of
procedure and practice in formal adjudicatory proceedings. The
provisions of the Administrative Procedure Act concerning notice and
opportunity for comment on agency rulemaking (5 U.S.C. 553) do not
apply to the promulgation of agency rules of practice. For this reason
these changes are made effective upon publication in the Federal
Register.
For ease of reading, the AGBCA's entire Rules of Procedure are
included, including republished or revised sections. The major
revisions are summarized here:
Sec. 24.2 Composition of the Board. The rule allows the AGBCA's
Vice Chair to act for the Chair upon request or absence of the Chair.
Sec. 24.4 Jurisdiction. In accordance with other USDA regulations,
jurisdiction over appeals from certain Federal Crop Insurance
Corporation final administrative decisions regarding reinsurance
agreements has been added, and the AGBCA's jurisdiction over appeals of
debarments and suspensions has been clarified to conform to AGBCA
decisions and Departmental practice that the AGBCA's decisions are
final within the Department. The title of the Contract Work Hours and
Safety Standards Act has been corrected and the AGBCA's jurisdiction
has been clarified in accordance with statutory language. The
distinction between ``statutory'' and ``nonstatutory'' jurisdiction has
been eliminated.
Sec. 24.5 Time for Filing Notice of Appeal. The time limits have
been clarified for each type of AGBCA jurisdiction.
Sec. 24.6 Board Location and Address. The AGBCA's telephone and
facsimile numbers have been added.
Sec. 24.9 Definitions. The unnecessary definition of contracting
officer of the Forest Service has been eliminated. The definition of
``days'' has been added to this section.
Sec. 24.21 Rules of Procedure of Agriculture Board of Contract
Appeals--AGBCA. The definition of ``days'' has been removed from this
section and added to the definitions section.
Rule 1(b) & (c). In accordance with section 2351(b) of FASA, the
threshold for certification, decision, and notification has been raised
from $50,000 to $100,000. These rules have been modified to reflect
this change.
Rule 3 now indicates that the AGBCA will provide appellants with a
copy of the notice on Alternative Dispute Resolution with the notice of
docketing.
Rules 4(a) & (b), 6(a) & (b) now require that, except for the
Complaint, the parties should serve documents on the opposing party
rather than filing all copies with the AGBCA.
Rule 12.1(a). In accordance with section 2351(d) of FASA, the
maximum for applicability of the small claims (expedited) procedures
has been raised from $10,000 to $50,000.
Rule 12.1(b). In accordance with section 2351(c) of FASA, the
maximum for applicability of the accelerated procedures has been raised
from
[[Page 56207]]
$50,000 to $100,000. Rule 12.3(c) has a similar change.
Rule 16(a) now conforms to the AGBCA's current practice of
requiring parties to file the Complaint directly with the Board but to
serve copies of other documents directly on the opposing party, and to
use certified mail, return receipt requested, for serving papers.
Rule 16(b) now allows use of facsimile transmissions, specifies
that receipt occurs upon receipt by facsimile of the entire document,
and cautions parties that time limits will not be extended merely
because of facsimile equipment failures.
Rule 20 now clarifies that Administrative Judges may issue
subpoenas only in CDA appeals.
Rule 21.1. New rule 21.1 provide that the Chair has authority to
request the appropriate United States Attorney to apply for subpoenas
in non-CDA appeals.
Rule 30 now provides that the AGBCA may specify a time shorter than
three years within which parties must act to reinstate appeals
dismissed without prejudice.
Rule 34. Former Rule 34 described the application of the AGBCA's
Rules of Procedure to various contracts. Because this information is
contained in Sec. 24.4, this rule is eliminated. New Rule 34 notifies
parties of the availability of methods of Alternative Dispute
Resolution.
Rule 35. New rule 35 notifies parties of the USDA's rules regarding
applications for attorneys' fees and expenses under the Equal Access to
Justice Act, 5 U.S.C. 504.
The Rules of Procedure for ``nonstatutory'' appeals contained in 7
CFR 24.21 Appendix B are eliminated.
List of Subjects in 7 CFR Part 24
Administrative practice and procedure; Agriculture; Government
contracts; Organization and functions (Government agencies).
For the reasons set forth in the Preamble, and under the
Secretary's authority, 5 U.S.C. 301, part 24, title 7, Code of Federal
Regulations is revised to read as follows:
PART 24--BOARD OF CONTRACT APPEALS, DEPARTMENT OF AGRICULTURE
Subpart A--Organization and Functions
Sec.
24.1 General.
24.2 Composition of the Board.
24.3 Presiding Administrative Judge.
24.4 Jurisdiction.
24.5 Time for filing notice of appeal.
24.6 Board location and address.
24.7 Public information.
24.8 Rules of procedure.
24.9 Definitions.
Subpart B--Rules of Procedure
24.21 Rules of Procedure of Agriculture Board of Contract Appeals--
AGBCA.
Authority: 5 U.S.C. 301; 15 U.S.C. 714b, 714g, and 714h; 16
U.S.C. 551; 40 U.S.C. 486(c); 41 U.S.C. 601-613.
Subpart A--Organization and Functions
Sec. 24.1 General.
The Board of Contract Appeals, United States Department of
Agriculture (referred to as the ``Board'') is an agency of the
Department established by the Secretary of Agriculture in accordance
with the requirements of the Contract Disputes Act of 1978 (41 U.S.C.
601-613). The provisions of 5 U.S.C. 551-559 (Administrative Procedure
Act) are not applicable to proceedings before the Board except for the
requirements under 5 U.S.C. 552 respecting public information, agency
rules, opinions, orders, and records.
Sec. 24.2 Composition of the Board.
The Board consists of a Chair, Vice Chair, and other members, all
of whom are attorneys at law duly licensed by a state, commonwealth,
territory, or the District of Columbia. The Board members are
designated Administrative Judges. The Chair shall manage the business
and operations of the Board, assign cases to members, and establish
panels for cases. Except as provided in Rule 12.2, the Small Claims
(Expedited) Procedure, and Rule 12.3, the Accelerated procedure,
decisions of the Board will be rendered by a panel of three
Administrative Judges, and the decision of the majority of the panel
will constitute the decision of the Board. The Vice Chair shall perform
the functions of the Chair upon request of the Chair or in the event of
absence or unavailability of the Chair to act.
Sec. 24.3 Presiding Administrative Judge.
The Chair acts as presiding Administrative Judge, or designates a
member of the Board or an examiner to so act, in each proceeding. The
Presiding Administrative Judge or the examiner has power to:
(a) Rule upon motions and request;
(b) Adjourn the hearing from time to time and change the time and
place of hearing;
(c) Administer oaths and affirmations and take affidavits;
(d) Receive evidence;
(e) Order the taking of depositions;
(f) Admit or exclude evidence;
(g) Hear oral argument on facts or law;
(h) Consolidate appeals filed by two or more appellants; and
(i) Do all acts and take all measures necessary for the maintenance
of order at the hearing and the efficient conduct of the proceeding.
In cases considered by the Board under Sec. 24.4(b), (c), and (d)
the Chair is hereby delegated authority to request subpoenas pursuant
to 5 U.S.C. 304.
Sec. 24.4 Jurisdiction.
(a) Contract Disputes Act. Pursuant to the Contract Disputes Act of
1978 (41 U.S.C. 601-613), the Board shall consider and determine
appeals from decisions of contracting officers relating to contracts
entered into on or after March 1, 1979, and, at the contractor's
election, contracts entered into prior to March 1, 1979, with respect
to claims pending before the contracting officer on March 1, 1979, or
initiated thereafter. For purposes of this paragraph (a) the term
``contracts'' shall mean express or implied contracts made by the
Department of Agriculture, agencies of the Department, or by any other
executive agency when such agency or the Administrator for Federal
Procurement Policy has designated the Board to decide the appeal, for:
(1) The procurement of property, other than real property in being;
(2) The procurement of services;
(3) The procurement of construction, alternation, repair, or
maintenance of real property; or
(4) The disposal of personal property.
(b) Federal Crop Insurance Corporation. The Board shall have
jurisdiction of appeals of final administrative determinations of the
Corporation pertaining to standard reinsurance agreements under 7 CFR
400.169(d). Decisions of the Board shall be final within the
Corporation and the Department.
(c) Suspension and debarment. (1) The Board shall have jurisdiction
to hear and determine the issue of suspension or debarment, and the
period thereof, on an appeal by a person suspended or debarred by:
(i) An authorized official of the Department of Agriculture under
48 CFR 409.470; or
(ii) An authorized official of the Commodity Credit Corporation
under 7 CFR part 1407.
(2) In addition, the Board shall have jurisdiction to hear and
determine the issue of debarment, and the period thereof, on an appeal
by a timber purchaser debarred by an authorized official of the Forest
Service under 36 CFR 223.138.
(3) Decisions of the Board shall be final within the Department.
[[Page 56208]]
(d) Contract Work Hours and Safety Standards Act. The Board shall
have jurisdiction to act for the head of the agency in appeals of the
administrative determinations of liquidated damages under the Contract
Work Hours and Safety Standards Act (40 U.S.C. 327-333), 40 U.S.C. 330.
Sec. 24.5 Time for filing notice of appeal.
A notice of appeal under Sec. 24.4(a), (c)(1)(i), or (c)(1)(ii)
shall be filed within 90 days from the date of receipt of a contracting
officer's or suspending or debarring official's decision. A notice of
appeal under Sec. 24.4(b) shall be filed within 90 days from the date
of receipt of the Corporation's final determination. A notice of appeal
under Sec. 24.4(c)(2) shall be filed within 30 days from the date of
receipt of the debarring official's decision. A notice of appeal under
Sec. 24.4(d) shall be filed within 60 days from the date of withholding
of liquidated damages. The time for filing a notice of appeal shall not
be extended by the Board.
Sec. 24.6 Board location and address.
The Board of Contract Appeals is located in Washington, DC. All
correspondence and all documents to be filed with the Board should be
addressed to the Board of Contract Appeals, United States Department of
Agriculture, Washington, DC 20250-0600. The Board's telephone number is
202-720-7023; the Board's facsimile number is 202-720-3059.
Sec. 24.7 Public information.
(a) The records of the Board are open to the public for inspection
and copying at the Office of the Board. Decisions and rulings of the
Board shall be published from time to time and copies made available to
the public upon request at cost of duplication except that the Board
shall, in its discretion, have authority to make copies of decisions
and rulings available at no charge in accordance with Department
policy, appendix A to 7 CFR part 1, subpart A. Hearings before the
Board shall be open to the public.
(b) Information that is to be made available for public inspection
and copying under provisions of 5 U.S.C. 552(a)(2) and 7 CFR 1.5 may be
obtained at the office of the Board. The address of the Board is set
forth in Sec. 24.6. Except for such information as is generally
available to the public, requests should be in writing and submitted in
accordance with 7 CFR 1.6 and paragraphs (c) and (d) of this Sec. 24.7.
(c) Facilities for copying are available at the office of the
Board.
(d) Facilities for inspection and copying are available during
established office hours for the Board, usually 8:30 a.m. to 5:00 p.m.
Monday through Friday. The Department of Agriculture has established a
schedule of fees for copies of information. The Board charges for
copies of records in accordance with the Department fee schedule,
appendix A to 7 CFR part 1, subpart A.
(e) The Vice Chair is authorized to receive requests for records
submitted in accordance with 7 CFR 1.6(a), and to make determinations
regarding whether to grant or deny requests for records exempt from
mandatory disclosure under the provisions of 5 U.S.C. 552(b). This
official is authorized to
(1) Extend the ten-day administrative deadline for reply pursuant
to 7 CFR 1.14,
(2) Make discretionary releases pursuant to 7 CFR 1.17(b) of
records except from mandatory disclosure, and
(3) Make determinations regarding the charging of fees.
(f) Appeals from denials of request submitted under paragraph (e)
of this section shall be submitted in accordance with 7 CFR 1.6(e) to
the Chair, Board of Contract Appeals, United States Department of
Agriculture, Washington, DC 20250-0600. The Chair shall determine
whether to grant or deny the appeal and shall also make all necessary
determinations relating to an extension of the twenty-day
administrative deadline for reply pursuant to 7 CFR 1.14, discretionary
release pursuant to 7 CFR 1.17(b) of records exempt from mandatory
disclosure under 5 U.S.C. 552(b), and the charging of appropriate fees.
Sec. 24.8 Rules of procedure.
The Chair of the Board shall prescribe its Rules of Procedure and
publish such Rules in subpart B of this part 24 and may prescribe and
so publish amendments from time to time. The Rules of Procedure and any
amendments thereto shall be consistent with this subpart.
Sec. 24.9 Definitions.
Board means the Board of Contract Appeals established under this
subpart.
Contract means any agreement entered into by the Department or its
agencies or authorized officials with any person having the legal
effect of a contract between the Department and such person.
Contracting officer means any person who, by appointment in
accordance with applicable regulations, has the authority to enter into
and administer contracts and make determinations and findings with
respect thereto and includes the authorized representative of the
contracting officer, acting within the limits of his/her authority.
Days means calendar days. Except as otherwise provided by law, in
computing any period of time prescribed by the rules in this part or
any order of the Board, the day of the event from which the designated
period of time begins to run shall not be included, but the last day of
the period shall be included unless it is a Saturday, Sunday, or a
legal holiday, in which even the period shall run to the end of the
next business day. If mailing is required, the date of the postmark
shall be treated as the date action was taken.
Department means the United States Department of Agriculture.
Government attorney means the attorney of the Department designated
to handle a particular appeal on behalf of the contracting officer.
Person means any individual, partnership, public or private
corporation, association, agency or other legal entity.
Subpart B--Rules of Procedure
Sec. 24.21 Rules of Procedure of Agriculture Board of Contract
Appeals--AGBCA.
(a) Preface to Rules. Time, computation and extensions. All time
limitations specified for various procedural actions are computed as
maximums and are not to be fully exhausted if the action described can
be accomplished in a lesser period. Where appropriate and justified,
however, extensions of time will be granted. All requests for
extensions of time by either party shall be in writing and state good
cause for the requested extension. The Board may grant such extensions
on good cause shown except that the Board shall not extend the time
prescribed under Sec. 24.5 for taking an appeal.
(b) Ex parte communications. No member of the Board or of the
Board's staff shall entertain, nor shall any person directly or
indirectly involved in an appeal submit to the Board or the Board's
staff, off the record, any evidence, explanation, analysis, or advice,
whether written or oral, regarding any matter at issue in an appeal.
This provision does not apply to consultation among Board members or to
ex parte communication concerning the Board's administrative functions
or procedures.
Appendix to Subpart B--Rules of Procedure
Index
Preliminary Procedures
Rule 1. Appeals, How and When Taken.
Rule 2. Notice of Appeal, Contents of.
Rule 3. Docketing of Appeals.
[[Page 56209]]
Rule 4. Preparation, Content, Organization, Forwarding, and Status
of Appeal File.
Rule 5. Dismissal for Lack of Jurisdiction.
Rule 6. Pleadings.
Rule 7. Amendments of Pleadings or Record.
Rule 8. Hearing Election.
Rule 9. Prehearing Briefs.
Rule 10. Prehearing or Presubmission Conference.
Rule 11. Submission Without a Hearing.
Rule 12. Optional SMALL CLAIMS (EXPEDITED) and ACCELERATED
Procedures.
Rule 12.1. Elections to Utilize SMALL CLAIMS (EXPEDITED) and
ACCELERATED Procedures.
Rule 12.2. The SMALL CLAIMS (EXPEDITED) Procedure.
Rule 12.3. The ACCELERATED Procedure.
Rule 12.4. Motions for Reconsideration in Rule 12 cases.
Rule 13. Settling the Record.
Rule 14. Discovery--Depositions.
Rule 15. Interrogatories to Parties, Admission of Facts, and
Production and Inspection of Documents.
Rule 16. Service of Papers other than Subpoenas.
Hearings
Rule 17. Where and When Held.
Rule 18. Notice of Hearings.
Rule 19. Unexcused Absence of a Party.
Rule 20. Hearings: Nature; Examination of Witnesses.
Rule 21. Subpoenas for CDA Appeals.
Rule 21.1. Subpoenas for Non-CDA Appeals.
Rule 22. Copies of Papers.
Rule 23. Posthearing Briefs.
Rule 24. Transcript of Proceedings.
Rule 25. Withdrawal of Exhibits.
Representation
Rule 26. The Appellant.
Rule 27. The Government.
Miscellaneous
Rule 28. Decisions.
Rule 29. Motion for Reconsideration.
Rule 30. Dismissal Without Prejudice.
Rule 31. Dismissal for Failure to Prosecute or Defend.
Rule 32. Remand from Court.
Rule 33. Sanctions.
Rule 34. Alternative Dispute Resolution.
Rule 35. Application for Attorneys' Fees and Expenses Under the
Equal Access to Justice Act.
Rules--Preliminary Procedures
Rule 1. Appeals, How and When Taken
(a) Notice of Appeal--90 days. Notice of an appeal shall be in
writing and mailed or otherwise furnished to the Board within 90
days from the date of receipt of a contracting officer's decision. A
copy of the notice of appeal shall be furnished to the contracting
officer from whose decision the appeal is taken.
(b) Failure to Issue CO Decision--60 days--$100,000 or less.
Where the contractor has submitted a claim of $100,000 or less to
the contracting officer and has requested a written decision within
60 days from receipt of the request, and the contracting officer has
not done so, the contractor may file a notice of appeal as provided
in paragraph (a) of this Rule 1, citing the failure of the
contracting officer to issue a decision.
(c) Failure to Issue CO Decision--Reasonable Time--More than
$100,000. Where the contractor has submitted a certified claim in
excess of $100,000 to the contracting officer and the contracting
officer has failed to issue a decision within a reasonable time, the
contractor may file a notice of appeal as provided in paragraph (a)
of this Rule 1, citing the failure to issue a decision.
(d) Stay Pending Final CO Decision. Upon docketing of appeals
filed pursuant to paragraphs (b) or (c) of this Rule 1, the Board
may, at its option, stay further proceedings pending issuance of a
final decision by the contracting officer within such period of time
as is determined by the Board.
Rule 2. Notice of Appeal. Contents of
A notice of appeal should indicate that an appeal is being taken
and should identify the contract (by number), the department and
agency or bureau involved in the dispute, the decision from which
the appeal is taken, and the amount in dispute, if known. The notice
of appeal should be signed by the appellant (the contractor making
the appeal), or by the appellant's duly authorized representative or
attorney. The Complaint referred to in Rule 6 may be filed with the
notice of appeal, or the appellant may designate the notice of
appeal as a Complaint.
Rule 3. Docketing of Appeals
When a notice of appeal in any form has been received by the
Board, it shall be docketed promptly. Notice in writing shall be
given to the appellant, with a copy of these rules and information
on Alternative Dispute Resolution. Notice in writing shall be given
also to the contracting officer and to the Office of the General
Counsel.
Rule 4. Preparation, Content, Organization, Forwarding, and Status
of Appeal File
(a) Duties of Contracting Officer. Within 30 days of receipt of
a letter from the Board transmitting the Complaint, the contracting
officer shall assemble and transmit to the Board through agency
channels and appeal file, and shall transmit copies thereof to the
appellant and the Government attorney. The appeal file shall consist
of all documents pertinent to the appeal, including:
(1) The decision from which the appeal is taken;
(2) The contract, including specifications and pertinent
amendments, plans, and drawings;
(3) All correspondence between the parties relevant to the
appeal; including the letter or letters of claim in response to
which the decision was issued;
(4) Transcripts of any testimony taken during the course of
proceedings, and affidavits or statements of any witnesses on the
matter in dispute made prior to the filing of the notice of appeal
with the Board; and
(5) Any additional information considered relevant to the
appeal.
(b) Duties of the Appellant. Within 30 days after receipt of a
copy of the appeal file assembled by the contracting officer, the
appellant shall transmit to the Board any documents not contained
therein which the appellant considers relevant to the appeal, and
shall transmit copies of such documents to the Government attorney
and the contracting officer.
(c) Organization of Appeal File. Documents in the appeal file
may be originals or legible facsimiles or authenticated copies, and
shall be arranged in chronological order where practicable, numbered
sequentially, tabbed, and indexed to identify the contents of the
file.
(d) Lengthy Documents. Upon request by either party, the Board
may waive the requirement to furnish to the other party copies of
bulky, lengthy, or out-of-size documents in the appeal file when
inclusion would be burdensome. At the time a party files with the
Board a document as to which such a waiver has been granted such
party shall notify the other party that the document or a copy is
available for inspection at the offices of the Board or of the party
filing same.
(e) Status of Documents in Appeal File. Documents contained in
the appeal file are considered, without further action by the
parties, as part of the record upon which the Board will render its
decision. However, a party may object, for reasons stated, to
consideration of a particular document or documents reasonably in
advance of hearing, or if there is no hearing, of settling the
record. If such objection is made the Board shall remove the
document or documents from the appeal file and permit the party
offering the document to move its admission as evidence either prior
to hearing or prior to closing the record if there is no hearing, in
accordance with Rules 13 and 20.
(f) Dispensing with Appeal File Requirements. Notwithstanding
the foregoing, the filing of the Rule 4 (a) and (b) documents may be
dispensed with by the Board either upon request of the appellant in
the notice of appeal or thereafter upon stipulation of the parties.
Rule 5. Dismissal for Lack of Jurisdiction
Any motion addressed to the jurisdiction of the Board shall be
promptly filed. Hearing on the motion shall be afforded on
application of either party. However, the Board may defer its
decision on the motion pending hearing on both the merits and the
motion. The Board shall have the right to any time and on its own
initiative to raise the issue of its jurisdiction to proceed with a
particular case, and shall do so by an appropriate order, affording
the parties an opportunity to be heard thereon.
Rule 6. Pleadings
(a) Appellant--Complaint. Except as provided in Rule 12.2(b) and
Rule 12.3(b), within 30 days after receipt of notice of docketing of
the appeal, the appellant shall file with the Board an original and
two copies of a Complaint setting forth simple, concise and direct
statements of each of its claims. Appellant shall also set forth the
basis, with appropriate reference to contract provisions, of each
claim and the dollar amount claimed, to the extent known. This
pleading shall fulfill the generally recognized requirements of a
Complaint, although no
[[Page 56210]]
particular form is required. Upon receipt of the Complaint, the Board
shall serve a copy of it upon the Government and the contracting
officer. Should the Complaint not be filed within 30 days,
appellant's claim and appeal may, if in the opinion of the Board the
issues before the Board are sufficiently defined, be deemed to set
forth its Complaint and the Government shall be so notified.
(b) Government--Answer. Within 30 days from receipt of the
Complaint, or the aforesaid notice from the Board, the Government
shall prepare and file with the Board an original and one copy of an
Answer thereto. The Answer shall set forth simple, concise, and
direct statements of Government's defenses to each claim asserted by
appellant, including any affirmative defenses available, and shall
be served on the appellant and the contracting officer. Should the
Answer not be filed within 30 days, the Board may, in its
discretion, enter a general denial on behalf of the Government, and
the appellant shall be so notified.
Rule 7. Amendments of Pleadings or Record
The Board upon its own initiative or upon application by a party
may order a party to make a more definite statement of the Complaint
or Answer, or to reply to an Answer. The Board may, in its
discretion, and within the proper scope of the appeal, permit either
party to amend its pleading upon conditions fair to both parties.
When issues within the proper scope of the appeal, but not raised by
the pleadings, are tried by express or implied consent of the
parties, or by permission of the Board, they shall be treated in all
respects as if they had been raised therein. In such instances,
motions to amend the pleadings to conform to the proof may be
entered, but are not required. If evidence is objected to at a
hearing on the ground that it is not within the issues raised by the
pleadings, it may be admitted within the proper scope of the appeal,
provided, however, that the objecting party may be granted a
continuance if necessary to enable it to meet such evidence.
Rule 8. Hearing Election
After filing of the Government's Answer or notice from the Board
that it has entered a general denial on behalf of the Government,
each party shall advise whether it desires a hearing as prescribed
in Rules 17 through 25, or whether it elects to submit its case on
the record without a hearing, as prescribed in Rule 11.
Rule 9. Prehearing Briefs
Based on an examination of the pleadings, and its determination
of whether the arguments and authorities addressed to the issues are
adequately set forth therein, the Board may, in its discretion,
require the parties to submit prehearing briefs in any case in which
a hearing has been elected pursuant to Rule 8. If the Board does not
require prehearing briefs either party may, in its discretion and
upon appropriate and sufficient notice to the other party, furnish a
prehearing brief to the Board. In any case where a prehearing brief
is submitted, it shall be furnished so as to be received by the
Board at least 15 days prior to the date set for hearing, and a copy
shall simultaneously be furnished to the other party as previously
arranged.
Rule 10. Prehearing or Presubmission Conference
(a) Conference. Whether the case is to be submitted pursuant to
Rule 11, or heard pursuant to Rules 17 through 25, the Board may
upon its own initiative, or upon the application of either party,
arrange a telephone conference or call upon the parties to appear
before an Administrative Judge or examiner of the Board of a
conference to consider:
(1) Simplification, clarification, or severing of the issues;
(2) The possibility of obtaining stipulations, admissions,
agreements and rulings on admissibility of documents, understandings
on matters already of record, or similar agreements that will avoid
unnecessary proof;
(3) Agreements and rulings to facilitate discovery;
(4) Limitation of the number of expert witnesses, or avoidance
of similar cumulative evidence;
(5) The possibility of agreement disposing of any or all of the
issues in dispute; and
(6) Such other matters as may aid in the disposition of the
appeal.
(b) Written Results of Conference. The Administrative Judge or
examiner of the Board shall make such rulings and orders as may be
appropriate to achieve settlement by agreement of the parties or to
aid in the disposition of the appeal. The results of pretrial
conferences, including any rulings and orders, shall be reduced to
writing by the Administrative Judge or examiner and this writing
shall thereafter constitute a part of the record.
Rule 11. Submission Without a Hearing
Either party may elect to waive a hearing and to submit its case
upon the record before the Board, as settled pursuant to Rule 13.
Submission of a case without hearing does not receive the parties
from the necessity of proving the facts supporting their allegations
or defenses. Affidavits, depositions, admissions, answer to
interrogatories, and stipulations may be employed to supplement
other documentary evidence in the Board record. The Board may permit
such submission to be supplemented by oral argument (transcribed if
requested), and by briefs arranged in accordance with Rule 23.
Rule 12. Optional SMALL CLAIMS (EXPEDITED) and ACCELERATED
Procedures
Notwithstanding any other provisions of these Rules of
Procedure, the SMALL CLAIMS (EXPEDITED) and ACCELERATED procedures
shall be available solely at the election of the appellant.
Rule 12.1. Elections to Utilize SMALL CLAIMS (EXPEDITED) and
ACCELERATED Procedures
(a) SMALL CLAIMS (EXPEDITED)--$50,000 or less. In appeals where
the amount in dispute is $50,000 or less, the appellant may elect to
have the appeal processed under a SMALL CLAIMS (EXPEDITED) procedure
requiring decision of the appeal, whenever possible, within 120 days
after the Board receives written notice of the appellant's election.
The details of this procedure appear in Rule 12.2.
(b) ACCELERATED--$100,000 or less. In appeals where the amount
in dispute is $100,000 or less, the appellant may elect to have the
appeal processed under an ACCELERATED procedure requiring decision
of the appeal, whenever possible, within 180 days after the Board
receives written notice of the appellant's election. The details of
this procedure appear in Rule 12.3.
(c) Time for Election. The appellant's election of either the
SMALL CLAIMS (EXPEDITED) procedure or the ACCELERATED procedure may
be made by written notice within 60 days after receipt of notice of
docketing the appeal unless such period is extended by the Board for
good cause. The election may not be withdrawn except with permission
of the Board and for good cause.
(d) Board Determines Amount in Dispute. In deciding whether the
SMALL CLAIMS (EXPEDITED) procedure or the ACCELERATED procedure is
applicable to a given appeal, the Board shall determine the amount
in dispute.
Rule 12.2. The SMALL CLAIMS (EXPEDITED) Procedure
(a) Time Periods for Proceedings. In cases proceeding under the
SMALL CLAIMS (EXPEDITED) procedure, the following time periods shall
apply: (1) Within ten days from the Government's first receipt from
either the appellant or the Board of a copy of the appellant's
notice of election of the SMALL CLAIMS (EXPEDITED) procedure, the
Government shall send the Board a copy of the contract, the
contracting officer's final decision, and the appellant's claim
letter or letters, if any; remaining documents required under Rule 4
shall be submitted in accordance with times specified in that rule
unless the Board otherwise directs;
(2) Within 15 days after the Board has acknowledged receipt of
appellant's notice of election, the assigned Administrative Judge
shall take the following actions, if feasible, in an informal
meeting or a telephone conference with both parties: (i) Identify
and simplify the issues; (ii) establish a simplified procedure
appropriate to the particular appeal involved; (iii) determine
whether the appellant wants a hearing, and if so, fix a time and
place therefore; (iv) require the Government to furnish all the
additional documents relevant to the appeal, and (v) establish an
expedited schedule for resolution of the appeal.
(b) Decisions--120 Days). Pleadings, discovery and other
prehearing activity will be allowed only as consistent with the
requirement to conduct the hearing on the date scheduled, or if no
hearing is scheduled, to close the record on a date that will allow
decisions within the 120-day limit. The Board, in its discretion,
may impose shortened time periods for any actions prescribed or
allowed under these rules, as necessary to enable the Board to
decide the appeal within the 120-day limit, allowing whatever time,
up to 30 days, that the Board considers necessary for the
preparation of the
[[Page 56211]]
decision after closing the record and the filing of briefs, if any.
(c) Form of Decisions. Written decision by the Board in cases
processed under the SMALL CLAIMS (EXPEDITED) procedure will be short
and contain only summary findings of fact and conclusions. Decisions
will be rendered for the Board by a single Administrative Judge. If
there has been a hearing, the Administrative Judge presiding at the
hearing may, in the Judge's discretion, at the conclusion of the
hearing and after entertaining such oral arguments as deemed
appropriate, render on the record oral summary findings of fact,
conclusions, and a decision of the appeal. Whenever such an oral
decision is rendered, the Board will subsequently furnish the
parties a typed copy of such oral decision for record and payment
purposes and to establish the starting date for the period for
filing a motion for reconsideration under Rule 29.
(d) No Precedent--Not Appealable. A decision against the
Government or the contractor shall have no value as precedent, and
in the absence of fraud shall be final and conclusive and may not be
appealed or set aside.
Rule 12.3. The ACCELERATED Procedure
(a) Time Periods for Proceedings. In cases proceeding under the
ACCELERATED procedure, the parties are encouraged, to the extent
possible consistent with adequate presentation of their factual and
legal positions, to waive pleadings, discovery, and briefs. The
Board, in its discretion, may shorten time periods prescribed
elsewhere in these Rules, including Rule 4, as necessary to enable
the Board to decide the appeal within 180 days after the Board has
received the appellant's notice of election of the ACCELERATED
procedure, any may reserve 30 days for preparation of the decision.
(b) Decisions--180 Days. Pleadings, discovery and other
prehearing activity will be allowed only as consistent with the
requirement to conduct the hearing on the dates scheduled, or if no
hearing is scheduled, to close the record on a date that will allow
decision within the 180-day limit. The Board, in its discretion, may
impose shortened time periods for any actions prescribed or allowed
under these rules, as necessary to enable the Board to decide the
appeal within the 180-day limit, allowing whatever time, up to 30
days, that the Board considers necessary for the preparation of the
decision after closing the record and the filing of briefs, if any.
(c) Form of Decisions. Written decisions by the Board in cases
processed under the ACCELERATED procedure will normally be short and
contain only summary findings of fact and conclusions. Decisions
will be rendered for the Board by a single Administrative Judge with
the concurrence of the Chair or a Vice Chair or other designated
Administrative Judge, or by a majority among these two and an
additional designated member in case of disagreement. Alternatively,
in cases where the amount in dispute is $50,000 or less as to which
the ACCELERATED procedure has been elected and in which there has
been a hearing, the single Administrative Judge presiding at the
hearing may, with the concurrence of both parties, at the conclusion
of the hearing and after entertaining such oral arguments as deemed
appropriate, render on the record oral summary findings of fact,
conclusions, and a decision of the appeal. Whenever such an oral
decision is rendered, the Board will subsequently furnish the
parties a typed copy of such oral decision for record and payment
purposes and to establish the starting date for the period for
filing a motion for reconsideration under Rule 29.
Rule 12.4. Motions for Reconsideration in Rule 12 Cases
Motions for Reconsideration of cases decided under either the
SMALL CLAIMS (EXPEDITED) procedure or the ACCELERATED procedure need
not be decided within the original 120-day or 180-day limit, but all
such motions shall be processed and decided rapidly so as to fulfill
the intent of this Rule.
Rule 13. Settling the Record
(a) Components of the Record. The record upon which the Board's
decision will be rendered consists of the documents furnished under
Rules 4 and 12, to the extent admitted in evidence, and the
following items, if any: pleadings, prehearing conference memoranda
or orders, prehearing briefs, depositions or interrogatories
received in evidence, admissions, stipulations, transcripts of
conferences and hearings, hearings exhibits, posthearing briefs, and
documents which the Board has specifically designated be made a part
of the record. The record will, at all reasonable times, be
available for inspection by the parties at the office of the Board.
(b) Closing Dates for Inclusion of Material. Except as the Board
may otherwise order in its discretion, no proof shall be received in
evidence after completion of an oral hearing or, in cases submitted
on the record, after notification by the Board that the case is
ready for decision.
(c) Weight Given to Evidence. The weight to be attached to any
evidence of record will rest within the sound discretion of the
Board. The Board may in any case require either party, with
appropriate notice to the other party, to submit additional evidence
on any matter relevant to the appeal.
Rule 14. Discovery--Depositions
(a) General Policy and Protective Orders. The parties are
encouraged to engage in voluntary discovery procedures. In
connection with any deposition or other discovery procedure, the
Board may make any order required to protect a party or person from
annoyance, embarrassment, or undue burden or expense. Those orders
may include limitations on the scope, method, time and place for
discovery, and provisions for protecting the secrecy of confidential
information or documents.
(b) When Depositions Permitted. After an appeal has been
docketed and Complaint filed, the parties may mutually agree, or the
Board may, upon application of either party, order the taking of
testimony of any person by deposition upon oral examination or
written interrogatories before any officer authorized to administer
oaths at the place of examination, for use as evidence or for
purpose of discovery. The application for order shall specify
whether the purpose of the deposition is discovery or for use as
evidence.
(c) Orders on Depositions. The time, place, and manner of taking
depositions shall be as mutually agreed by the parties, or failing
such agreement, governed by order of the Board.
(d) Use as Evidence. No testimony taken by depositions shall be
considered as part of the evidence in the hearing of an appeal until
such testimony is offered and received in evidence at such hearing.
It will not ordinarily be received in evidence if the deponent is
present and can testify at the hearing. In such instances, however,
the deposition may be used to contradict or impeach the testimony of
the deponent given at the hearing. In cases submitted on the record,
the Board may, in its discretion, receive depositions to supplement
the record.
(e) Expenses. Each party shall bear its own expenses associated
with the taking of any deposition.
(f) Subpoenas. Where appropriate, a party may request the
issuance of a subpoena under the provisions of Rule 21.
Rule 15. Interrogatories to Parties, Admission of Facts, and
Production and Inspection of Documents
After an appeal has been docketed and Complaint filed with the
Board, a party may serve on the other party: (a) Written
interrogatories to be answered separately in writing, signed under
oath and answered or objected to within 30 days; (b) a request for
the admission of specified facts and the authenticity of any
documents, to be answered or objected to within 30 days after
service (the factual statements and the authenticity of the
documents to be deemed admitted upon failure of a party to respond
to the request); and (c) a request for the production, inspection
and copying of any documents or objects not privileged, which
reasonably may lead to the discovery of admissible evidence. Any
discovery engaged in under this Rule shall be subject to the
provisions of Rule 14(a) with respect to general policy and
protective orders and of Rule 33 with respect to sanctions.
Rule 16. Service of Papers Other Than Subpoenas
(a) Service of Papers. Papers shall be served personally or by
certified mail, return receipt requested, addressed to the Board or
to the party upon whom service is to be made. Parties shall furnish
three copies of Complaints directly to the Board. Parties shall
furnish two copies of Answers and briefs directly with the Board,
with one copy being served on the opposing party and the Board's
copies containing a notation to that effect. The party filing any
other paper with the Board shall send a copy thereof to the opposing
party, noting on the paper filed with the Board that a copy has been
so furnished. Subpoenas shall be served as provided in Rule 21.
(b) Facsimle Transmissions. Facsimile transmissions to the Board
and the parties are permitted. Parties are expected to submit their
facsimile machine numbers with their
[[Page 56212]]
filings. The Board's facsimile number is (202) 720-3059. The filing of
a document by facsimile transmission occurs upon receipt by the
Board of the entire printed submission. Parties are specifically
cautioned that deadlines for the filing of appeals will not be
extended merely because the Board's facsimile machine is busy or
otherwise unavailable at the time the filing is due. A document
submitted by facsimile should be followed by a copy of the document
sent by U.S. Postal Service or other delivery method.
Hearings
Rule 17. Where and When Held
Hearings will be held at such places determined by the Board to
best serve the interests of the parties and the Board. Hearings will
be scheduled at the discretion of the Board with due consideration
to the regular order of appeals, Rule 12 requirements, and other
pertinent factors. On request on motion by either party and for good
cause, the Board may, in its discretion, adjust the date of a
hearing.
Rule 18. Notice of Hearings
The parties shall be given at least 15 days notice of the time
and place set for hearings. In scheduled hearings, the Board will
consider the desires of the parties and the requirement for just and
inexpensive determination of appeals without unnecessary delay.
Rule 19. Unexcused Absence of a Party
The unexcused absence of a party at the time and place set for
hearing will not be occasion for delay. In the event of such
absence, the hearing will proceed and the case will be regarded as
submitted by the absent party as provided in Rule 11.
Rule 20. Hearings: Nature; Examination of Witnesses
(a) Nature of Hearings. Hearings shall be as informal as may be
reasonable and appropriate under the circumstances. Appellant and
the Government may offer such evidence as they deem appropriate and
as would be admissible under the Federal Rules of Evidence.
Stipulations of fact agreed upon by the parties may be regarded and
used as evidence at the hearing. The parties may stipulate the
testimony that would be given by a witness if the witness were
present. The Board may require evidence in addition to that offered
by the parties.
(b) Examination of Witnesses. Witnesses before the Board will be
examined orally under oath or affirmation, unless the presiding
Administrative Judge or examiner shall otherwise order. If the
testimony of a witness is not given under oath, the Board may advise
the witness that his statements may be subject to the provisions of
18 U.S.C. 287 and 1001, and any other provision of law imposing
penalties for knowingly making false representations in connection
with claims against the United States or in any matter within the
jurisdiction of any department or agency thereof.
Rule 21. Subpoenas for CDA Appeals
(a) General. For appeals under Sec. 24.4(a), upon written
request of either party filed with the recorder, or on the
initiative of the Administrative Judge to whom a case is assigned,
or who is otherwise designated by the Chair, such Administrative
Judge may issue a subpoena requiring:
(1) Testimony at a deposition--the deposing of a witness in the
city or county where such witness resides or is employed or
transacts business in person, or at another location convenient for
such witness that is specifically determined by the Board;
(2) Testimony at a hearing--the attendance of a witness for the
purpose of taking testimony at a hearing; and
(3) Production of books and papers--in addition to (1) or (2),
the production by the witness at the deposition or hearing of books
and papers designated in the subpoena.
(b) Voluntary Cooperation. Each party is expected (1) to
cooperate and make available witnesses and evidence under its
control as requested by the other party, without issuance of a
subpoena, and (2) to secure voluntary attendance of desired third-
party witnesses and production of desired third-party books, papers,
documents, or tangible things whenever possible.
(c) Requests for Subpoenas.
(1) A request for a subpoena shall normally be filed at least:
(i) 15 days before a scheduled deposition where the attendance
of a witness at a deposition is sought;
(ii) 30 days before a scheduled hearing where the attendance of
a witness at a hearing is sought.
In its discretion the Board may honor requests for subpoenas not
made within these time limitations.
(2) A request for a subpoena shall state the reasonable scope
and general relevance to the case of the testimony and of any books
and papers sought.
(d) Requests to Quash or Modify. Upon written request by the
person subpoenaed or by a party, made within 10 days after service
but in any event not later than the time specified in the subpoena
for compliance, the Board may (1) quash or modify the subpoena if it
is unreasonable and oppressive or for other good cause shown, or (2)
require the person in whose behalf the subpoena was issued to
advance the reasonable cost of producing subpoenaed books and
papers. Where circumstances require, the Board may act upon such a
request at any time after a copy has been served upon the opposing
party.
(e) Form; Issuance.
(1) Every subpoena shall state the name of the Board and the
title of the appeal, and shall command each person to whom it is
directed to attend and give testimony, and if appropriate, to
produce specified books and papers at a time and place therein
specified. In issuing a subpoena to a requesting party, the
Administrative Judge shall sign the subpoena and may, in the Judge's
discretion, enter the name of the witness and otherwise leave it
blank. The party to whom the subpoena is issued shall complete the
subpoena before service.
(2) Where the witness is located in a foreign country, a letter
rogatory or subpoena may be issued and served under the
circumstances and in the manner provided in 28 U.S.C. 1781-1784.
(f) Service.
(1) The party requesting issuance of a subpoena shall arrange
for service.
(2) A subpoena requiring the attendance of a witness at a
deposition or hearing may be served at any place. A subpoena may be
served by a United States marshal or deputy marshal, or by any other
person who is not a party and not less than 18 years of age. Service
of a subpoena upon a person named therein shall be made by
personally delivering a copy to that person and tendering the fees
for one day's attendance and the mileage provided by 28 U.S.C. 1821
or other applicable law; however, where the subpoena is issued on
behalf of the Government, money payments need not be tendered in
advance of attendance.
(3) The party at whose instance a subpoena is issued shall be
responsible for the payment of fees and mileage of the witness and
of the officer who serves the subpoena. The failure to make payment
of such charges on demand may be deemed by the Board as sufficient
ground for striking the testimony of the witness and the evidence
the witness has produced.
(g) Contumacy or Refusal to Obey a Subpoena. In case of
contumacy or refusal to obey a subpoena by a person who resides, is
found, or transacts business within the jurisdiction of a United
States District Court, the Board will apply to the Court through the
Attorney General of the United States for an order requiring the
person to appear before the Board or a member thereof to give
testimony or produce evidence or both. Any failure of any such
person to obey the order of the Court may be punished by the Court
as a contempt thereof.
Rule 21.1. Subpoenas for Non-CDA Appeals
For appeals under Secs. 24.4(b), (c), and (d), the Chair has
authority by delegation from the Secretary to request the
appropriate United States Attorney to apply to the appropriate
United States District Court for the issuance of subpoenas pursuant
to 5 U.S.C. 304.
Rule 22. Copies of Papers
When books, records, papers, or documents have been received in
evidence, a true copy thereof or of such part thereof as may be
material or relevant may be substituted therefor, during the hearing
or at the conclusion thereof.
Rule 23. Posthearing Briefs
Posthearing briefs may be submitted upon such terms as may be
agreed upon by the parties and the presiding Administrative Judge or
examiner at the conclusion of the hearing.
Rule 24. Transcript of Proceedings
Testimony and argument at hearings shall be reported verbatim,
unless the Board otherwise orders. Waiver of transcript may be
especially suitable for hearings under Rule 12.2. Transcripts or
copies of the proceedings shall be made available by the Board to
the Government attorney. Appellant may order transcripts of the
proceedings from the contract reporter at the hearing.
[[Page 56213]]
Rule 25. Withdrawal of Exhibits
After a decision has become final, the Board may, upon request
and after notice to the other party, in its discretion permit the
withdrawal of original exhibits, or any part thereof, by the party
entitled thereto. The substitution of true copies of exhibits or any
part thereof may be required by the Board in its discretion as a
condition of granting permission for such withdrawal.
Representation
Rule 26. The Appellant
An individual appellant may appear before the Board in person; a
corporation by one of its officers; and a partnership or joint
venture by one of its members; or any of these by an attorney at law
duly licensed in any state, commonwealth, territory, the District of
Columbia, or in a foreign country. An attorney representing an
appellant shall file a written notice of appearance with the Board.
Rule 27. The Government
Government counsel may, in accordance with their authority,
represent the interest of the Government before the Board. They
shall file notices of appearance with the Board, and notice thereof
will be given appellant or appellant's attorney in the form
specified by the Board from time to time. Whenever appellant and the
Government counsel are in agreement as to disposition of the
controversy, the Board may suspend further processing of the appeal.
However, if the Board is advised thereafter by either party that the
controversy has not been disposed of by agreement, the case shall be
restored to the Board's calendar without loss of position.
Miscellaneous
Rule 28. Decisions
Decisions of the Board will be made in writing and authenticated
copies of the decision will be forwarded simultaneously to both
parties. The rules of the Board and all final orders and decisions
(except those required for good cause to be held confidential and
not cited as precedents) shall be open for public inspection at the
offices of the Board in Washington, D.C. Decisions of the Board will
be made solely upon the record, as described in Rule 13.
Rule 29. Motion for Reconsideration
A motion for reconsideration may be filed by either party. It
shall set forth specifically the grounds relied upon to sustain the
motion. The motion shall be filed within 30 days from the date of
the receipt of a copy of the decision of the Board by the party
filing the motion.
Rule 30. Dismissal Without Prejudice
In certain cases, appeals docketed before the Board are required
to be placed in a suspense status and the Board is unable to proceed
with disposition thereof for reasons not within the control of the
Board. Where the suspension has continued, or may continue, for an
inordinate length of time, the Board may, in its discretion, dismiss
such appeals from its docket without prejudice to their restoration
when the cause for suspension has been removed. Unless either party
or the Board acts within three years, or such shorter time as
ordered by the Board, to reinstate any appeal dismissed without
prejudice, the dismissal shall be deemed with prejudice.
Rule 31. Dismissal for Failure to Prosecute or Defend
Whenever a record discloses the failure of either party to file
documents required by these rules, respond to notices of
correspondence from the Board, comply with orders of the Board or
otherwise indicates an intention not to continue the prosecution of
defense of an appeal, the Board may, in the case of a default by the
appellant, issue an order to show cause why the appeal should not be
dismissed or, in the case of a default by the Government, issue an
order to show cause why the Board should not act thereon pursuant to
Rule 33. If good cause is not shown, the Board may take appropriate
action.
Rule 32. Remand From Court
Whenever any court remands a case to the Board for further
proceedings, each of the parties shall, within 20 days of such
remand, submit a report to the Board recommending procedures to be
followed so as to comply with the court's order. The Board shall
consider the reports and enter special orders governing the handling
of the remanded case. To the extent the court's directive and tie
limitations permit, such orders shall conform to these rules.
Rule 33. Sanctions
If any party fails or refuses to obey an order issued by the
Board, the Board may then make such order as it considers necessary
to the just and expeditious conduct of the appeal.
Rule 34. Alternative Dispute Resolution
Upon joint motion or with the consent of both parties, the Board
may permit the use of methods of Alternative Dispute Resolution
(ADR). The Board shall notify parties of the availability of ADR
methods by transmitting information with its notice of docketing
(Rule 3).
Rule 35. Application for Attorneys' Fees and Expenses Under the
Equal Access to Justice Act
The Equal Access to Justice Act (EAJA), 5 U.S.C. 504, allows
payment of attorneys' fees and expenses to certain prevailing
parties in administrative adjudications with the Government unless
the Government's position was substantially justified. Rules
governing applications for fees and expenses under EAJA can be found
in 7 CFR 1.180 et seq.
Done in Washington, D.C., on October 30, 1995.
Dan Glickman,
Secretary of Agriculture.
[FR Doc. 95-27501 Filed 11-6-95; 8:45 a.m.]
BILLING CODE 3410-25-M
